Exhibit 10.1
First Amendment
to the
Agreement and Plan of Reorganization
This is the First Amendment dated as of August 31, 2000 to the
Agreement and Plan of Reorganization ("Amendment") by and among Nextel
Communications, Inc., a Delaware corporation ("Nextel"), Nextel Finance Company,
a Delaware corporation ("Acquisition Sub"), and Chadmoore Wireless Group, Inc.,
a Colorado corporation ("Chadmoore").
In consideration of the mutual covenants of this Amendment, Nextel,
Acquisition Sub and Chadmoore agree as follows:
1. Terms used in this Amendment, unless otherwise defined herein, are
used as defined in the Agreement and Plan of Reorganization dated as of August
21, 2000 by and among Nextel, Acquisition Sub and Chadmoore (the "Agreement").
2. The first sentence of subsection 1.05(a) of the Agreement is hereby
amended to read as follows: "If at the time of the Closing the aggregate value
of Channels not Delivered by Chadmoore exceeds $4,800,000, then the value of
each Channel that is not Delivered will reduce the Adjusted Enterprise Value by
the value of such Channel."
3. Section 1.06 of the Agreement is hereby amended to read in its
entirety as follows:
Section 1.06 Adjustment for Nextel Funding. Not less than
three (3) days prior to the Closing, Chadmoore shall provide Nextel and
Lender (as defined in Section 5.04) with (i) written notice as to the
aggregate portion of the Advances (as defined in Section 5.04) that
Chadmoore will repay to the Lender, on terms reasonably acceptable to
the Lender (the "Repayment Amount"); and (ii) a statement (accompanied
by reasonable supporting detail) of all fees and interest that
Chadmoore has paid to Lender, together with interest accrued through
the Closing Date on advances made by Lender to enable Chadmoore to pay
such fees and interest (the "Loan Costs"). The Advances minus the sum
of the Repayment Amount plus the Loan Costs equals the "Funding
Adjustment." The Funding Adjustment shall be subtracted from
$160,000,000 (as adjusted pursuant to Section 1.05) to determine the
Adjusted Enterprise Value.
4. Section 5.04 of the Agreement is hereby amended to read in its
entirety as follows:
Section 5.04 Funding of Chadmoore Operations. On or about the
Signing Date but not later than August 25, 2000, Nextel will cause a
third-party lender to, or if such arrangements cannot be concluded,
cause a wholly owned subsidiary of Nextel (in either case, "Lender") to
provide advances to Chadmoore of up to $5,200,000. From the date hereof
until the earlier of (a) the Closing Date,
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(b) eighteen (18) months from the date hereof, (c) the termination of
this Agreement pursuant to Article 9 or (d) the filing by or against
Chadmoore of a petition under the U.S. Bankruptcy Code (or similar
state law proceeding), on or before the 5th business day of each
calendar month beginning September 2000, Chadmoore will submit its
request for a cash advance in an amount not to exceed $1.3 million plus
any fees or interest then due to Lender or which are reasonably
expected to become due within thirty (30) days thereafter, and, not
later than five (5) business days after receiving a request for such
advance, Lender will advance the requested funds to Chadmoore. Advances
made as contemplated by this Section 5.04 will be evidenced and secured
on terms reasonably satisfactory to Lender and subordinated on terms to
which GATX Capital Corporation consents. Nextel shall cause Lender to
exercise commercially reasonable efforts to document such terms as soon
as practicable after the Signing Date. Upon the Closing Date, Nextel
will repay to the Lender the Funding Adjustment. If this Agreement is
terminated pursuant to Article 9, the aggregate amount of advances made
as contemplated by this Section 5.04 (the "Advances") shall become due
and payable with interest within 180 days of such termination. Interest
will accrue on a daily basis from the date of such termination on the
unpaid principal amount outstanding pursuant to this Section 5.04, at a
rate per annum equal to the Prime Rate. For purposes of this Agreement,
"Prime Rate" means rate of interest per annum publicly announced from
time to time by Barclays Bank PLC, as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall
be effective from and including the date such change is publicly
announced as being effective.
5. The Agreement is hereby amended to add a new Section 9.03 to read in
its entirety as follows:
Section 9.03 Termination Fee. If this Agreement is terminated
for any reason by one or both of the parties (other than as a result of
a Closing), then notwithstanding any other provision to the contrary
contained herein or in any document related to the loan from Lender to
Chadmoore, then Acquisition Sub shall pay to Chadmoore an amount equal
to the Loan Costs through the date of termination. Payment is due in
immediately available funds not more than five (5) days after Chadmoore
provides Nextel and/or Acquisition Sub with a written statement of the
amount due, accompanied by reasonable supporting detail.
6. Except as stated herein the Agreement remains in full force and
effect without Amendment. References in the Agreement to the Agreement mean the
Agreement as amended by this Amendment.
7. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the date first above written.
NEXTEL COMMUNICATIONS, INC
By: /s/Morgan O'Brien
Title: Vice Chairman
NEXTEL FINANCE COMPANY
By: /s/ Morgan O'Brien
Title: Vice Chairman
CHADMOORE WIRELESS GROUP, INC.
By: /s/Robert W. Moore
Title: President
